Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J0800887
Jones, P.J.
In 2008, the Contra Costa County Juvenile Court adjudicated 16-year-old D.M. (the minor) a ward of the court after concluding he committed one count of first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a)). The court committed the minor to a 12-month program at a rehabilitation facility, followed by probation. A condition of the minor’s probation requires him to stay 100 yards away from, and have no association with, his father, James (father).
On appeal, the minor challenges the probation condition. The question before us is whether the condition is a valid restriction on the minor’s constitutional right to associate with father. We conclude that it is, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of May 16, 2008, Colleen Hanratty was in bed when she heard a door open and footsteps in the hallway of her house. Hanratty saw “[a] guy peeking in” her bedroom and in court identified the intruder as the minor. The minor saw Hanratty, and quickly left. Hanratty followed the minor to the front door, but by the time she got there, he had disappeared. A few minutes later, she heard a voice coming from the front of her house. She looked out the window and saw father standing near her front porch. He was “just hanging up off of a cell phone call.”
She asked him “who he was and what he was doing on [her] walkway.” In response, father said he was looking for a man named “Marcus. And then he said, ‘Oh, I must have the wrong house.’” Hanratty asked father to leave because she “assumed he had something to do with” the minor breaking into her house. According to Hanratty, “[i]t’s not normal for two different strange men to be at my house.” Father complied with her request and left. Later that day, Hanratty noticed that someone had broken into the shed in her backyard and ripped the door off its hinges.
Antioch police officers spoke with father and learned he had been living with a roommate in the house next to Hanratty’s. He denied approaching Hanratty’s front porch; he told the officers he had been confused about where he was because he was talking on his cell phone. Both officers thought father’s explanation “didn’t make any sense.” The officers also spoke with father’s roommate. She said father had been acting “weird and nervous” and that she suspected he had done something wrong. The day after the incident, a police officer spoke with the minor. Initially the minor said he had been home, in bed, on the morning of the incident. Later, however, police officers asked the minor whether father had any involvement in the incident and the minor responded, “‘I don’t know, maybe’” and would not make eye contact with the police officers.
At the conclusion of the jurisdictional hearing, the court found that the People had proven “beyond a reasonable doubt” that the minor committed first degree residential burglary in violation of Penal Code sections 459 and 460, subdivision (a). The court set a date for the dispositional hearing.
The probation report prepared for the dispositional hearing described the minor’s upbringing: he was raised by both parents until 2003 when father began using methamphetamine and “‘ruined their lives.’” At that point, the minor’s mother moved the family to Idaho to “get away from . . . father and his self-destructive lifestyle.” Later, however, the minor regained contact with father and moved back to California. The minor’s mother expressed an interest in having the minor live with her; she stated that “having a responsible parent back in the minor’s life will ‘do wonders’ to remedy his behavior[.]” The minor’s mother remarked that “crystal meth stole” father’s soul.
The minor lived with father for a time, but father was “unable to maintain a steady residence” and the minor began living with other relatives. According to the probation report, the minor admitted using crystal methamphetamine regularly in the year preceding the incident. While the minor lived with father, “there was no discipline in his life. [ ] [F]ather did not view school as important, and therefore did not encourage the minor to attend. He basically let the minor do what he wanted, without holding him responsible for his actions.” The minor conceded father “‘might be bad news’” and that “being on probation will help him stay away from [ ] father, who he knows is not the best person to look up to.” The probation report described father as “an extremely negative figure in [the minor’s] life and may be the leading factor in the minor’s drug use and in his involvement in the instant offense. While living with [ ] father, the minor was exposed to drugs and to the criminal lifestyle his father has chosen to live. Additionally, [father] continues to take no responsibility for his actions and maintains he had no involvement in the instant offense.”
At the dispositional hearing, counsel for the minor urged the court to place the minor on probation. She noted that father “had quite a bit of influence over his son and was basically allowing him to be out of school for much longer than is . . . appropriate. . . .” She also said father “holds some culpability here. I’m not trying to state that [the minor] doesn’t take responsibility for his actions, but he is the minor here and he could not have had a worse role model.” Defense counsel described father as “a criminal who just hasn’t been caught yet. He uses crystal methamphetamine. He did not make school a priority for his child. . . . he was basically causing his son to fall into a situation that was not acceptable[.]” According to defense counsel, father is “an absolutely inappropriate” and “despicable” parent.
At the end of the dispositional hearing, the court noted that it had read and considered the probation report. The court ordered the minor to attend a rehabilitative facility for 12 months and, upon completion, to live with his mother. The court also placed the minor on probation following his release from the rehabilitative facility. One probation condition precluded the minor from having any contact with father. The court explained, “Given this [probation] report, . . . [the minor] is to have no contact with, no association with – that means no communications, and we’ll put a hundred yard stay-away for that matter, with [ ] father.” In response, counsel for the minor said, “I would welcome that.” Counsel did not object to the probation condition.
DISCUSSION
The minor contends the probation condition prohibiting him from associating with father violates his “fundamental right” of association. In response, the People offer two arguments. First, they contend the doctrines of forfeiture, waiver, and invited error bar the minor’s claim. Second, they contend the minor’s “constitutional right to associate was properly limited.” As a result, the threshold issue is whether the minor’s failure to raise a constitutional objection — and his affirmative acquiescence to the probation condition — in the lower court bars him from raising the issue on appeal.
Until recently, “the terms ‘waiver’ and ‘forfeiture’ [were] used interchangeably. As the California Supreme Court has explained, however, ‘[w]aiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the “intentional relinquishment or abandonment of a known right.” [Citations.]’ [Citation.]” (People v. Simon (2001) 25 Cal.4th 1082, 1097, fn. 9; see also In re Sheena K. (2007) 40 Cal.4th 875, 880, fn. 1 (Sheena K.) [describing difference between forfeiture and waiver and noting that the term “‘waiver’ . . . conveys an express relinquishment of a right or privilege”].)
The minor has not forfeited his argument that the probation condition violates his constitutionally protected right of freedom of association. (See Sheena K., supra, 40 Cal.4th at pp. 885-886 [challenges to “facial constitutional defect[s]” that “[do] not require scrutiny of individual facts and circumstances” are not forfeited despite failure to object in juvenile court]; see also People v. Murillo (2008) 171 Cal.App.4th 210, 219.) The People, however, have a strong argument that the minor waived any complaints about the probation condition by affirmatively acquiescing to it in the court below. When the court imposed the probation condition precluding the minor from having any contact or association with father, defense counsel stated, “I would welcome that.” As such, the minor intentionally relinquished his right to challenge the constitutionality of the condition on appeal.
The People also characterize appellant’s actions as waiver or an express relinquishment of a right or privilege “under the theory of invited error or estoppel,” and cite Mary M. v Los Angeles (1991) 54 Cal.3d 202, 212, for an application of the invited error doctrine. The People may view invited error as a species of waiver or as synonymous with waiver. We need not parse these terms in light of our election, infra, to exercise our discretion to reach the merits of appellant’s claim. (People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.)
Notwithstanding the minor’s waiver, we consider the merits of his claim to obviate an ineffective assistance of counsel claim. (See, e.g., Murillo, supra, 171 Cal.App.4th at pp. 219-220.) The parties agree that the parent-child relationship is constitutionally protected and that the probation condition undoubtedly impinges upon that relationship. The right of association, however, is not absolute. “‘Although parents enjoy a constitutionally protected interest in their family integrity, this interest is counterbalanced by the compelling governmental interest in the protection of minor children, particularly in circumstances where the protection is considered necessary as against the parents themselves.’” (U.S. v. Myers (2d Cir. 2005) 426 F.3d 117, 125, quoting Wilkinson v. Russell (2d Cir. 1999) 182 F.3d 89, 104.) Moreover, “‘[r]estriction of the right of association is part of the nature of the criminal process.’” (People v. Peck (1996) 52 Cal.App.4th 351, 363, quoting People v. Robinson (1988) 199 Cal.App.3d 816, 818.)
We are not aware of any California cases where a probation condition prohibited a minor defendant from associating with his or her parents. Several California cases, however, have upheld probation conditions that restrict an adult defendant’s associational rights with spouses and other relatives. (People v. O’Neil (2008) 165 Cal.App.4th 1351, 1356, citing In re Peeler (1968) 266 Cal.App.2d 483; People v. Jungers (2005) 127 Cal.App.4th 698, 704-705 [upholding condition precluding the defendant from contacting his wife]; People v. Celestine (1992) 9 Cal.App.4th 1370, 1375-1382 [probation condition prohibiting the defendant from associating with his co-arrestee girlfriend was valid]; People v. Wardlow (1991) 227 Cal.App.3d 360, 367.)
For example, in In re Peeler, the appellate court upheld “a probation condition prohibiting the defendant from associating with reputed drug users . . . even where the defendant’s husband was a presumed drug user.” (O’Neil, supra, 165 Cal.App.4th at p. 1356, citing In re Peeler, supra, 266 Cal.App.2d at pp. 492-493.) There, the defendant plead guilty to marijuana possession and was placed on probation. (Peeler, supra, at p. 484.) One of the probation conditions prohibited the defendant from associating with known or “‘reputed’” users of marijuana. (Id. at p. 488.) The condition “was, effectively, a command that she live apart from her husband.” (Id. at p. 488.) The appellate court held that “under the peculiar circumstances of this case the conditions imposed by the court were reasonable and valid pro tempore.” (Id. at pp. 492-493.)
More recently, in Wardlow, the appellate court upheld a probation condition prohibiting the defendant (who pleaded guilty to child molestation) from contacting two brothers who had histories of child molestation. (Wardlow, supra, 227 Cal.App.3d at pp. 364, 367.) The Wardlow court held: “Conditions of probation prohibiting an individual from associating with other persons including spouses and close relatives, who have been involved in criminal activity have generally been upheld when reasonably related to rehabilitation or reducing future criminality.” (Id. at p. 367.) The court explained that “[k]eeping [the defendant] from associating with other child molesters was reasonably related to rehabilitation and future criminality, particularly since [the defendant], himself, believed he had become a child molester because his brother had molested him. The condition was not overbroad; the court tailored the condition narrowly to include only those family members who were child molesters. We find no abuse in the imposition of this condition.” (Ibid.)
“The right to associate . . . ‘may be restricted if reasonably necessary to accomplish the essential needs of the state and public order.’ [Citations.] . . . A limitation on the right to associate which takes the form of a probation condition is permissible if it is ‘(1) primarily designed to meet the ends of rehabilitation and protection of the public and (2) reasonably related to such ends.’” (O’Neil, supra, 165 Cal.App.4th at p. 1356, quoting People v. Lopez (1998) 66 Cal.App.4th 615, 627-628; Jungers, supra, 127 Cal.App.4th at p. 704 [“probation conditions that restrict constitutional rights must be carefully tailored and ‘reasonably related to the compelling state interest’ in reforming and rehabilitating the defendant”].)
The probation condition at issue here is reasonably necessary to rehabilitate the minor and protect the public. “[T]he environment in which a probationer serves probation is an important factor on the likelihood that probation will be successfully completed.” (Robinson, supra, 199 Cal.App.3d at p. 818.) Here, creating an environment where the minor could not be influenced by father — who even the minor described as “‘bad news’” — was crucial to the minor’s successful completion of probation. According to the probation report, father “may be the leading factor in the minor’s drug use and in his involvement” in the burglary. Father was outside of Hanratty’s house immediately after the incident and gave an implausible explanation for his presence there. And the minor, when asked whether father had any involvement in the incident, said, “‘I don’t know, maybe.’”
The probation report further noted that father used crystal methamphetamine, was unable to maintain a steady residence, and “ruined” his family’s life. It stated that while the minor lived with father, the minor did not attend school, used methamphetamine, and had “no discipline” in his life. Defense counsel described father as “an absolutely inappropriate” and “despicable” parent. According to defense counsel, father is “a criminal who just hasn’t been caught yet. He uses crystal methamphetamine. He did not make school a priority for his child. . . . he was basically causing his son to fall into a situation that was not acceptable[.]” Even the minor recognized that being on probation would help him stay away from father, who he acknowledged was “not the best person to look up to.” The state’s interest in rehabilitating the minor justifies the restriction on the minor’s right to contact father. (Jungers, supra, 127 Cal.App.4th at p. 705.)
Finally, the probation condition is also reasonably related to rehabilitating the minor and protecting the public. The prohibition on contact with father is not permanent, and is subject to an early review at a hearing that was to be set 90 days after the minor’s placement with his mother. In any event, minor does not dispute that he or his father may move the court for modification. (Welf. & Inst. Code, §§ 775, 776, 778.)
In summary, it is well-settled that the juvenile court has broad discretion to “fashion conditions of probation for the purpose of rehabilitation and may even impose a condition of probation that would be unconstitutional or otherwise improper so long as it is tailored to specifically meet the needs of the juvenile.” (In re Josh W. (1997) 55 Cal.App.4th 1, 5; see also In re James C. (2008) 165 Cal.App.4th 1198, 1203 [the Welfare and Institutions Code authorizes the juvenile court to “‘impose and require “any and all reasonable conditions [of probation] that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced”’”]; In re Daniel R. (2006) 144 Cal.App.4th 1, 6-7; Sheena K., supra, 40 Cal.4th at p. 889 [“a condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court”].)
“‘In fashioning the conditions of probation, the juvenile court should consider the minor’s entire social history in addition to the circumstances of the crime. [Citation.] Thus, “‘[a] condition of probation which is [legally] impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court.’” (In re Walter P. (2009) 170 Cal.App.4th 95, 100, quoting In re Todd L. (1980) 113 Cal.App.3d 14, 20.) Here, the juvenile court considered the minor’s social history and the circumstances of his crime. It correctly determined that imposing a no-contact provision with father would best serve the minor and the public. As a result, we conclude the imposition of the probation condition was neither constitutionally impermissible nor an abuse of discretion.
DISPOSITION
The dispositional order is affirmed.
We concur: Simons, J., Needham, J.